Whither the Criminal Court: Confronting Stops-and-Frisks

By Zeidman, Steven | Albany Law Review, Winter 2012 | Go to article overview

Whither the Criminal Court: Confronting Stops-and-Frisks


Zeidman, Steven, Albany Law Review


Two recent cases from one of New York's intermediate appellate courts suppressed evidence based on illegal searches, (1) and, given the present stop-and-frisk controversy, immediately became headline news. The New York Times ran a front-page story (2) and the New York Post printed an editorial titled "Next stop: Anarchy." (3) In federal court in Manhattan, a judge granted class-action status to a lawsuit challenging the New York City Police Department (NYPD) stop-and-frisk practice, and commenced a trial to determine whether the NYPD was adhering to constitutional search and seizure requirements. (4) The New York Times article even declared that judges were "the most potent critics" of stop-and-frisk practices. (5) These decisions, and the attention they garnered, suggest that New York courts are immersed in stop-and-frisk litigation. (6) That is hardly the case. The timely decisions rendered by the federal court and the state appellate court on this contentious subject actually point to a larger issue--the invisibility and willful irrelevance of the New York City Criminal Court, the first-tier trial court. (7)

While many have critiqued the NYPD, its Commissioner, and the Mayor for the plague of rampant stops-and-frisks that impact young men of color in disproportionate and disturbing numbers, (8) few have turned their attention to the role of the criminal court. One would expect, or at least imagine, that in a city with more than 685,000 stops-and-frisks per year, (9) there would be innumerable suppression hearings with police officers called to testify under oath about what they did and why they did it. This is precisely the role imagined for the criminal court by the U.S. Supreme Court when it established the exclusionary rule for Fourth Amendment violations. (10) The Court determined that exclusion, or suppression, of the evidence was necessary in order to deter police officers from violating constitutional rights and performing unreasonable searches and seizures. (11)

However, suppression hearings in the criminal court are few and far between. (12) Just as the criminal court's longstanding and overarching emphasis on efficiency and plea bargains trumps trials and meaningful determinations of guilt or innocence, (13) it also ignores, if not abhors, suppression hearings and careful examinations of the legality of everyday police conduct on the street. By abdicating its critical oversight role, the criminal court effectively shields police behavior from any meaningful external review or accountability and allows and encourages rampant stops-and-frisks to continue unabated. (14)

The criminal court's missing-in-action status on the policing issue of the day is all the more egregious when the NYPD's stops-and-frisks are examined through a constitutional lens. The very use of the phrase "stop-and-frisk" implies that the practice employed by the NYPD is somehow condoned or imbued with legality by the Supreme Court through its landmark decision from 1968 in Terry v. Ohio. (15) Although street stops must be distinguished from street stops-and-frisks, the tension and controversy (16) surrounding both practices has generally been subsumed under the "stop-and-frisk" heading. That makes sense since street stops in general are viewed as authorized by the Court in Terry, the case that gave the Court's imprimatur to the practice now known as "stop-and-frisk." Given that Terry is offered by proponents of stop-and-frisk as providing constitutional cover for this controversial policing tactic, (17) it behooves all concerned to critically examine whether, and to what extent, that is truly the case. Put simply, did the Supreme Court in Terry mean to authorize more than 685,000 street stops in a single city in a single year?

In Terry, the Court wrestled with a seemingly basic question: what, if anything, can police do to a citizen when they don't have probable cause to arrest, but they suspect that something illegal is afoot?

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